Special counsel targets Biden for the crime of having a ‘poor memory’

“A sympathetic, well-meaning, elderly man with a poor memory.” That description of Joe Biden, 81, is what has grabbed the most attention in the 388-page report published on Thursday by the special counsel in charge of investigating Biden’s handling of confidential documents from his time as senator and vice president.

While special counsel Robert Hur concluded in the report that there were no grounds to charge Biden with a crime, his allusions to Biden’s age and mental acuity have served as a kind of political and electoral condemnation of the president — one without trial or jury. The report has angered the president, while Republicans have said it is proof that Biden is unfit for office and should be incapacitated. But with just nine months before the presidential elections, the Democrats do not have a viable replacement to take on Trump, who is the favorite to win the Republican nomination.

Shortly after the Hamas terrorist attack on Israel, as a global crisis unfolded, Biden was interrogated by Hur and his team for five hours on October 8 and 9, 2023. Prior to the interrogation, the president had been speaking by phone with heads of state, members of his Cabinet and Congress, and had met repeatedly with his national security team. Then he began answering questions about events that took place many years ago.

The special counsel makes a point of commenting on that exchange in his report: “He did not remember when he was vice president, forgetting on the first day of the interview when his term ended (’if it was 2013 — when did I stop being vice president?’), and forgetting on the second day of the interview when his term began (’in 2009, am I still vice president?’). He did not remember, even within several years, when his son Beau died.” Biden served as Barack Obama’s vice president from 2009 to 2017. His son Beau died of a brain tumor in 2015.

Hur was appointed U.S. attorney by Donald Trump, although it was Attorney General Merrick Garland, a Biden appointee, who tasked Hur with overseeing the investigation into Biden’s handling of classified documents. His report into the case is filled with comments about Biden’s memory, which is described as “significantly limited” and “hazy.” Hur also claims that Biden showed “diminished faculties” and that his conversations were “painfully slow.”

Biden’s lawyers — who had access to the document before its release — unsuccessfully called for those comments to be removed from the report, arguing they were “superfluous” and “inflammatory.” “We do not believe that the report’s treatment of President Biden’s memory is accurate or appropriate. The report uses highly prejudicial language to describe a commonplace occurrence among witnesses: a lack of recall of years-old events,” stated a letter — penned by Bob Bauer and Richard Sauber — which appears at the end of the report. The letter points out that while other witness face no scrutiny for not remembering long-ago events, Biden is treated differently, “in prejudicial and inflammatory terms.”

The lawyers argue that it is contradictory for the special counsel to conclude that no criminal charges against Biden are warranted, while at the same time commenting that the president’s age and poor memory would make him amenable to a jury. “If the evidence does not establish guilt, then discussing the jury impact of President Bi den’s hypothetical testimony at a trial that will never occur is entirely superfluous,” they stated in the letter.

Biden was also deeply angered at the report. The president learned of its release while at an event with House Democrats near Washington. According to those present, the president was especially upset about the claims that he couldn’t remember his son death. “You think I would fucking forget the day my son died?” he reportedly claimed, according to sources familiar with his comments.

On Thursday, soon after the report was released, Biden appeared publicly to express his anger. “There’s even reference that I don’t remember when my son died. How in the hell dare he raise that? Frankly, when I was asked the question, I thought to myself, it wasn’t any of their damn business [...] I don’t need anyone to remind me when he passed away,” he said. With a breaking voice, Biden added that he has been wearing a rosary since his son Beau died in 2015 from brain cancer. In his address, Biden also dismissed the claims about his mentally fitness: “My memory is fine,” he said. “I am well-meaning and I am elderly. I know what the hell I’m doing. I put this country back on its feet. I don’t need his recommendation,” he added, in reference to the special counsel.

Biden and Trump’s lapses

However, as Biden tried to refute the comments about his mental acuity on Thursday, he mistakenly referred to Egyptian leader Abdul Fattah al-Sisi as the “president of Mexico.” This lapse comes after other recent gaffes. In the past few weeks, Biden mistakenly referred to French President Emmanuel Macron as his predecessor François Mitterrand and misremembered a conversation with former German Chancellor Angela Merkel, instead saying that it had been with Helmut Kohl.

Donald Trump, Biden’s foreseeable rival in the presidential elections on November 5, has made similar slipups. He said that Hungary’s Viktor Orbán was the “president of Türkiye.” He also claimed that his rival in the Republican primaries, Nikki Haley, was in charge of Capitol security on January 6, 2021, confusing her with Nancy Pelosi. And he warned that Biden’s foreign policy was going to provoke “World War II.”

These slipups have taken no toll on Trump, who is sailing through the primaries despite facing four indictments for 91 crimes. But for Biden, they are a massive political blow. In a poll published last August by the Associated Press-NORC Center for Public Affairs Research, three in four Americans replied that the president was too old to serve another term. What’s more, he was most associated with the words “old,” “slow,” “confused” and “bumbling” — a jab often used by Trump. Given the lack of alternatives, Democrats have closed ranks with Biden, but they are also aware of their candidate’s weaknesses.

Special counsel Hur’s report has been jumped on by Republicans, who have called for the president to be disqualified on the grounds that he is mentally unfit for office. What’s more, Trump could use the report — which criticizes Biden’s mishandling of classified documents, but does not find grounds for criminal charges — to argue the justice system is guilty of double standards, even though Hur’s document highlights the enormous differences between the case against Trump and Biden.

In their letter, the president’s lawyers criticized the special counsel for saying that Biden’s behavior was “totally irresponsible” — the same words the president had used to describe Trump’s actions. “This kind of criticism of an uncharged party violates ‘long-standing Department practice and protocol,’” the lawyers argued, citing the 2016 precedent when FBI Director James Comey lashed out at Hillary Clinton for being “extremely careless” with classified material. Comey argued that there was “evidence of potential violations” of the law, but concluded that “no reasonable prosecutor would bring such a case.” A later review found that Comey’s actions were “extraordinary and insubordinate.”

Hur’s claim that Biden’s behavior was “totally irresponsible” is reminiscent of Comey’s comment that Clinton was “extremely careless.” While both Biden and Clinton were cleared of wrongdoing, there was little to celebrate. The Comey report helped pave the way for Trump to win the White House. Will the Hur report help him return to the Oval Office?

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